JUDGMENT

Abdul Rashid, J. - By means of a registered sale deed dated 15th October 1936, Faiz-ul-Hassan, defendant 1 sold to Bhikan and Sukhan, defendants 2 and 3, 19 bighas 13 biswas of land for Rs. 295. The mutation in respect of this sale was sanctioned on 31st January 1937. The land sold bore the following khasra Nos. 962, 963, 964, 966 and 77. On 7th June 1937, Faiz-ul-Hassan sold 16 bighas, 14 biswas of land to Arya, Jal Singh, Bhagirat and Amin Chand, defendants 4 to 7 by means of a sale deed for Rs. 1500. The khasra Numbers of this land are 962, 963, 964 and 966. On 14th October 1937, it was discovered by Faiz-ul-Hassan, defendant 1, and Bhikan and Sukhan, defendants 2 and 3, that wrong khasra numbers had been given in the registered sale deed dated 14th October 1936. Both Faiz-ul-Hassan vendor and Bhikan and Sukhan vendees appeared before the Patwari and made a report that khasra Nos. 962, 963, 964 and 966 had been wrongly entered in the registered deed dated 14th October 1936, and that the sale deed really related to land bearing khasra Nos. 813, 814, 817, 818 and 819. All the facts with respect to this mutual mistake were given in the statements of Faiz-ul-Hassan and Bhikan and Sukhan. This mistake was eventually rectified by the revenue authorities by means of mutations Nos. 588 and 589.

2. The present suit was filed by Daundi on 16th October 1937, for possession by means of pre-emption of land bearing khasra Nos. 962, 963, 964, 966 and 77 alleged to have been sold by the sale deed dated 14th October 1936, for Rs. 295. The plaintiff ignored the rectification that had taken place and stated that really no mistake had been made and that the land mentioned in the plaint had in fact been sold by Faiz-ul-Hassan to Bhikan and Sukhan for Rs. 295. Arya, Jal Singh, Bhagirat and Amin Chand were also impleaded as defendants by the plaintiff as the land in dispute had further been sold to them by means of the sale deed dated 7th June 1937. The trial Court held that land bearing khasra Nos. 962, 963, 964 and 966 had never been sold to Bhikan and Sukhan and that these numbers were entered in the sale deed owing to a mutual mistake. After giving this finding the trial Court rejected the plaint on the ground that there being no sale actually of the land in question the plaint did not disclose any cause of action. The plaintiff preferred an appeal in the Court of the Senior Subordinate Judge. The Senior Subordinate Judge held that the sale deed was clear and unambiguous and that no oral evidence modifying the terms of the sale deed dated 14th October 1936 could be admitted. He also held that no mutual mistake was proved. The finding of the trial Court was upset and the case was returned to the lower Court for decision on the merits in accordance with law. Against this decision defendants 4 to 7 have preferred a second appeal to this Court.

3. The learned Senior Subordinate Judge has overlooked proviso (1) to Section 92, Evidence Act. This proviso lays down that any fact may be proved which would invalidate any document owing to any mistake in fact or law. The evidence produced by the defendants was therefore admissible in order to prove that wrong numbers had been entered in the sale deed dated 14th October 1936. This is particularly so as both Faiz-ul-Hassan, the vendor, and Bhikan, the vendee, admitted before the revenue authorities as well as in their evidence in the trial Court that a mutual mistake of fact had crept into the sale deed. The evidence of Faiz-ul-Hassan vendor (D.W. 6) and of Bhikhan (D.W. 5) clearly showed that the land intended to be sold bore khasra Nos. 813, 814, 817, 818 and 819 and that the other khasra numbers were never intended to be sold. One very important circumstance has been ignored by the lower Appellate Court. Khasra Nos. 962, 963, 964 and 966 relate to "Har" land. This "Har" land is land of superior quality and is worth about Rs. 100 per bigha. 16 bighas and 14 biswas of this land could not be sold fo